Smt. Asha devi and others vs Bhollu Ram and another

Ajay Kumar Mittal, J.—The defendant-petitioners are aggrieved by the order of the trial court dated 4.5.2011 whereby an application filed by them for appointment of Local Commissioner has been declined. Briefly, the facts as narrated in the petition may be noticed. Respondent No. 1 filed a suit against his brother Sewa Ram that he is owner of the house in question which was owned by their father and being his self acquired property, transferred the same in his favour by virtue of a civil court decree dated 18.5.1993 titled Bholu Ram v. Datta Ram. The petitioners are in possession of a part of the said house being licencee and since the licence has been terminated, they are liable to be evicted. The suit was contested by the petitioners by filing written statement alleging that the property in dispute was coparcenary joint Hindu family property which had come from their grand father and after his death, the same was inherited by Datta Ram and his sons. During the pendency of the suit, Zila Parishad, Gurgaon made an application for impleadng it as a party on the ground that it is owner of the property in question. The said application was allowed by the trial court vide order dated 7.11.2009 against which revision petition filed by the respondent was dismissed by this Court vide order dated 20.5.2010. Since the Zila Parishad, Gurgaon became party to the suit and claimed itself to be the owner, the petitioners filed an application for appointment of Local Commissioner for demarcation of the property in question. The trial court dismissed the application vide order impugned herein. Hence this revision petition.

Learned counsel for the petitioners submitted that demarcation of the property was essential for just decision of the case and the application for appointment of Local Commissioner was filed in order to do justice between the parties. The declining of the said application has resulted in miscarriage of justice.

On the other hand, learned counsel of the respondents supported the order passed by the trial court and submitted that there was no illegality or perversity in the order which may warrant interference by this Court. It was contended that in view of the judgments of this Court in Pritam Singh and another v. Sunder Lal and others,1 (1990)98 P.L.R. 1991, Sumer Chand Jain Vs. Vishnu Bhagwan Mangla, and Bant Singh alias Balwant Singh and another v. Raghubir Singh and others,3 (2008) 149 P.L.R. 336, no revision petition was maintainable against the order declining to appoint a Local Commissioner.

In the rejoinder, learned counsel for the petitioners relied upon judgment of the Apex Court in Surya Dev Rai Vs. Ram Chander Rai and Others, to contend that the revision petition was maintainable.

After giving thoughtful consideration to the respective submissions of learned counsel for the parties, I do not find any merit in the revision petition.

Order 26 Rule 9 of the CPC deals with appointment of Local Commissioner. It reads thus:-

Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

The aforesaid provision empowers the Court to appoint a Commissioner where it considers a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or for ascertaining any of those purposes enumerated therein. The Court while exercising discretion has to act judicially and cannot exercise arbitrary power. The object for appointment is to obtain evidence from the spot itself which helps the Court to properly and effectively evaluate the evidence on record. The report of the Local Commissioner is a piece of evidence and its weight has to be seen by the Court alongwith the other evidence on record.

It is not disputed that the defendant-petitioners are in possession of the property in dispute as a licensee. Once the defendants are in possession and they require that identification of the property is essential for just decision of the case, they can always get the property demarcated from a competent person who is conversant with the technicalities of demarcation and produce him as a witness.

The trial court while declining the prayer for appointment of Local Commissioner recorded in para 4, which is as under:-

Replying the above averments counsel for respondent/plaintiff stated that since the present suit is of mandatory injunction and the plaintiff has got property due to family settlement and defendant is in possession as a licencee. So local commission cannot be appointed.

I have heard the rival contentions of the learned counsel for applicant/defendant No. 1 Shri Pankaj Bhatnagar and learned counsel for respondent/plaintiff Shri Sandeep Aneja and learned L.O. for defendant No. 2 Shri HP Bansal and perused case file in between the lines. So far as the averment of applicant/defendant No. 1 regarding the appointment of local commission is concerned, same is not tenable because defendant is a licencee on the property and his averment is that father of the plaintiff and defendant No. 1 had no right to transfer the property by way of suffering a decree regarding the property which was not owned by him because present suit is not of declaration. Apart from it, this application is not filed by defendant No. 2 who is Zila Parishad. As already stated above that plaintiff has filed the suit against defendants for directing him to hand over the vacant possession. So in these circumstances whether the property bearing MC No. 15/4 situated in Indrapur, Gurgaon is part and parcel of No. 1461, Khatoni No. 1562, Khasra No. 774/72 (0-10-0), 775/72 (0-0-12) of Mauja Hidayatpur or not is of no use to the court to adjudicate upon the matter in controversy. Hence, appointment of local commission is not essential in the present case.

No illegality or perversity could be pointed out in the impugned order warranting interference by (his Court. Since no illegality or perversity could be shown in the order impugned herein which may impel this Court to interfere in exercise of revisional jurisdiction, the issue regarding maintainability of revision petition is left open to be adjudicated as and when an appropriate occasion arises. The petition is, accordingly, dismissed.